The National Immigration Project of the National Lawyers Guild and the Immigrant Legal Resource Center have published a practice advisory for criminal defense lawyers representing non-citizens seeking relief under the Deferred Action for Parental Accountability (DAPA) program announced by President Obama on November 20, 2014. DHS simultaneously announced new priorities for enforcement that will bar eligibility for the new program, many of which are based on criminal conduct or convictions. The nine-page practice advisory provides technical assistance to criminal defense practitioners seeking to navigate the eligibility shoals of the new program for clients facing criminal charges.

Eisha Jain, a fellow at Georgetown Law Center, has posted on SSRN an important and (to us) alarming article about the extent to which mere arrests are beginning to play the same kind of screening role outside the criminal justice system as convictions. In “Arrests as Regulation,” to be published in the Stanford Law Review in the spring, Jain argues that arrests are increasingly being used systematically as a sorting and screening tool by noncriminal actors (including immigration authorities, landlords, employers, schools and child welfare agencies), not because they are the best tool but because they are easy and inexpensive to access.

We recently came across this five-part series on sex offender registries, written by three Yale Law School students and published by Slate.com. It traces the recent history of registries since the passage of the Jacob Wetterling Act in 1994, examines some of the fallacies and flawed stereotypes underlying the expansion of registries in the past 20 years, and spotlights three areas in which the authors argue their growth has been especially unwise:

more non-violent “outlier” crimes are covered;

states are keeping people on registries for longer periods of time and making removal harder; and

more harsh collateral consequences attach to those required to register.

The Wall Street Journal has been running a well-researched series by Gary Fields and John Emschwiller on the consequences of mass conviction. The installment last week (“Decades-long arrest wave vexes employers”) describes the dilemma facing employers caught between legal limitations on who they can hire and legal obligations to be fair. Hiring the most capable workers seems a luxury most employers can’t afford.

The following interview was published on December 17, 2014, in the newsletter of the Council Of State Governments Justice Center.

By Mai P. Tran, Program Associate

Individuals returning home from prison face collateral consequences, or legal and policy restrictions, penalties, and disadvantages that impede their successful reentry and reintegration in their communities. Examples of such consequences include restrictions on employment and licensing, student financial assistance, welfare benefits, and public housing. The following Q & A feature with Margaret Love (pictured right), executive director and editor of the Collateral Consequences Resource Center(CCRC), provides an overview of the newly launched resource established in 2014 to promote discussion of the collateral consequences of a criminal record, and how to restore legal rights and overcome social barriers.

Below is another excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming), this one about challenges to firearms-related collateral consequences based on the constitutional right to bear arms. Criminal defense lawyers representing clients on felon-in-possession charges, and anyone seeking restoration of firearms rights after conviction, will be interested to know that the government has appealed the district court’s decision in Binderup v. Holder cited in note 8, discussed here a few weeks ago.

Binderup is a civil rights action in which the federal court in the Eastern District of Pennsylvania held that the federal felon-in-possession statute could not constitutionally be applied to an individual convicted of a non-violent sex offense in 1998 and sentenced to probation. This case, the first in which a federal court invalidated a federal statute on Second Amendment grounds, is likely to provide an early opportunity for the court of appeals to consider an issue that most commentators and some courts believe was left unresolved by the Supreme Court in D.C. v. Heller.

The New York Times this morning describes data from the U.S. Department of Education’s Office for Civil Rights showing that African-American girls tend to face more serious school discipline than white girls. “For all the attention placed on problems that black boysface in terms of school discipline and criminal justice, there is increasing focus on the way those issues affect black girls as well.” Black girls who get in trouble at school are also more frequently referred to the criminal justice system, where they can incur a criminal record that sticks with them into adulthood.

In 2013, the Justice Department launched itsSmart on Crime Initiative, which included a call for federal agencies to review collateral consequences in their own rules and policies, to determine which could be narrowed or amended without jeopardizing public safety. According to anNPR report, the results of that long-anticipated review are now in:

Amy Solomon was appointed by Attorney General Holder to oversee the twenty federal agencies charged with reviewing their regulations and policies for potential changes. She reports that hundreds of regulations were reviewed, but the vast majority were deemed “appropriately tailored for their purposes,” including HUD’s discretionary housing policies. So far, only three agencies have submitted changes.

In assessing the “appropriately tailored” conclusion in the context of HUD housing policies, NPR reporter Monica Haywood tells the story of Maurice Alexander, a 67-year-old man who was turned away from subsidized housing in the District of Columbia based on a six-year-old misdemeanor threat conviction, despiteguidancefrom HUD encouraging property owners and agents “to develop policies and procedures that allow ex-offenders to rejoin the community.” The HUD guidance urges property owners to consider all relevant information when reviewing applications from people with a criminal record, including evidence of rehabilitation and “probability of favorable future conduct.”

Haywood concludes that, “If Alexander’s case is any indication, owners may not be taking HUD’s advice.” Read more

Update (5/14/15): We have published a 50 state chart detailing relief from registration requirements on the Restoration of Rights page. The chart is based in part on Wayne Logan’s work. You can find the chart at this link.

Wayne Logan has summarized his research on relief from sex offender registration and community notification requirements for a forthcoming Wisconsin Law Review article in an excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming). This is the first of many tidbits from the book that will appear in this space from time to time:

Given the extended potential duration of registration and community notification (RCN) application, ranging from ten years to life, the question naturally arises over whether relief from its requirements and burdens can be attained at some point. While the federal Adam Walsh Act allows states to provide relief to registrants with a “clean record” for ten years,[1] states typically afford only very limited opportunity to registrants to exit registries.

South Carolina is most limited, offering no opportunity to petition for relief from lifetime registration and community notification;[2] only a pardon will trigger removal, and then only if the pardon is based “on a finding of not guilty specifically stated.”[3] In other states, opportunity for relief is only somewhat broadened, to include such sub-populations as juvenile offenders and those convicted of less serious offenses.[4] In still others, the eligibility group is again broadened, and petition is allowed after a period of years (e.g., 25),[5] and in several states select registrant groups can seek early relief.[6] Early relief, however, can be less than it seems: in Hawaii, for instance, only lifetime registrants can petition for early relief—after forty years on the registry;[7] ten- and 25-year class registrants must satisfy their terms.[8]

Amy Meek just sent us her colorfully titled and important new article recently published in the Ohio State Law Journal, about the collateral consequences imposed by municipal and county ordinances. As far as I know, this is the first serious effort to address consideration of conviction in connection with opportunities and benefits controlled at the local level. As the abstract below suggests, many types of entrepreneurial opportunities likely to be attractive to people with a criminal record are subject to governmental regulation below the state level. Because these local ordinances and regulations are rarely included in collections of state collateral consequences, they are invisible to defendants and unavailable to their counsel and the court at the time of plea or sentencing. Only in a few large municipalities, notably New York City, are criminal justice practitioners even aware of this locally created and administered system of restrictions and exclusions. For example, with the exception of the District of Columbia, municipal and county rules and regulations are not included in the NIJ-funded National Inventory of the Collateral Consequences of Conviction (NICCC). The potential for interaction between state and local authorities is a particularly intriguing subject that Professor Meek explores in her recommendations for legislative reform.